People v Vergel

[*1] People v Vergel 2006 NY Slip Op 51729(U) [13 Misc 3d 1208(A)] Decided on September 6, 2006 Supreme Court, Bronx County Sonberg, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 6, 2006
Supreme Court, Bronx County

The People of the State of New York

against

David Vergel, Defendant.



55648C-2004



For the People:

ROBERT T. JOHNSON

District Attorney

Bronx County

198 East 161st Street

Bronx, NY 10451

Miriam Bell,

Of Counsel

For the Defendant:

ROBERT FIERMAN

52 Vanderbilt Avenue

New York, NY 10017

Michael R. Sonberg, J.

On May 11, 2006, in Part T7, Supreme Court, Bronx County, defendant was convicted, after a jury trial, of Insurance Fraud in the Third Degree (PL§ 176.20), a Class D felony,following his indictment on December 21, 2004 for Insurance Fraud in the Third Degree and Attempted Grand Larceny in the Third Degree (PL§ 110/155.35).[FN1]

Following a Huntley suppression hearing on May 5, 2006, the case was adjourned to May 8, 2006, for jury selection. On May 8, 2006, defendant filed a motion to dismiss the indictment, contending that it was defective for lack of geographic jurisdiction, pursuant to Criminal Procedure Law section 20.20.[FN2] He maintained that since defendant was neither charged with [*2]arson for setting his vehicle on fire, nor with the filing of a false police report in New York, the State lacked territorial jurisdiction to prosecute defendant for insurance fraud and attempted grand larceny, since none of the elements of the crimes occurred in New York. The court reserved decision on defendant's motion and the matter proceeded to trial. After defendant was convicted, the People were allowed the opportunity to respond in writing to defendant's motion which was converted, without objection, to a CPL § 330.30 motion.

The Facts

On August 13, 2004, at approximately 5:30 A.M., NYPD Police Officer George Ricker received a radio transmission of a stolen vehicle. He and his partner, Officer Noguera, responded to the vicinity of West 27th Street and 10th Avenue in New York County, where he met defendant. Defendant told the officers that he had parked his vehicle at approximately 2 A.M. on West 27th Street, between 10th and 11th Avenues, and went to a club on West 28th Street. He returned at approximately 5 A.M. and realized that his car was not where he had parked it. The officers canvassed the area and checked with the tow pound and the New York City Marshals' Office, all to no avail. Defendant was subsequently brought to the 10th Precinct, where he filled out a complaint report and a vehicle theft supporting deposition.

Later that same day, NYPD Officer Brendan Sullivan of the Bronx Auto Larceny Unit caused a list of all car fires in Bronx County to be generated. He noticed that there was a burnt car at the location of East 237th Street and Bullard Avenue in Bronx County. Upon arriving at the location, he observed a burnt white Acura with a New Jersey license plate. He subsequently ran the vehicle identification number and learned that the vehicle belonged to defendant. Pursuant to his investigation, he determined that a stolen vehicle report for this vehicle had been filed in the 10th Precinct in New York County and reviewed that report and the supporting deposition. Officer Sullivan ascertained that the insurance carrier for the vehicle was State Farm Insurance and contacted them, in New Jersey, to tell them that he had an active case.

In mid-October, 2004, Officer Sullivan had a telephone conversation with defendant, advised him, falsely, that someone had been arrested driving a car with his license plate, and told him that he wanted defendant to come to the precinct and complete some paperwork. On October 21, 2004, defendant came to the 47th Precinct, met with Officer Sullivan, made an oral statement consistent with the previously filed police reports and was arrested immediately thereafter.

Todd Venezia, employed as an investigator with State Farm Insurance Company, testified that on August 13, 2004, State Farm received a claim from defendant for his vehicle. Subsequently, on September 3, 2004, State Farm received an Affidavit of Vehicle Theft from defendant claiming that his 1997 Acura vehicle had been stolen. Defendant's Acura was valued, at that time, at approximately $8,800, and, had the claim been processed and paid by State Farm, defendant would have received financial compensation from State Farm for approximately that amount.

William Butler, a lieutenant with the New York City Fire Department, assigned to Ladder Company 56, was working on August 12, 2004. At approximately 10:20 P.M., he responded to [*3]237th Street and Bullard Avenue in Bronx County, and observed an Acura with a heavy volume of fire in the engine compartment extending into the passenger compartment. Lieutenant Butler noted that the time of the dispatch was 10:20 P.M. and that the fire was extinguished at 10:47 P.M.

After the presentation of the prosecution's case at trial, defense counsel moved for a trial order of dismissal pursuant to CPL § 290.10 and renewed his pretrial objection that territorial jurisdiction had not been established. Defendant argued that since the destruction of the car in the Bronx was not an element of the offense and defendant was not charged with the arson or the filing of a false instrument, the evidence did not establish that defendant had committed any offense in New York. He argued, rather, that the evidence established that if there were a fraudulent insurance act, it took place in New Jersey. The People, in response to defendant's assertion that the prosecution was in excess of New York's territorial jurisdiction under CPL § 20.20, contended that an element of the crime had occurred within the State. CPL § 20.20 (1) (a). The court denied the motion finding that the People had established a prima facie case.

The defendant rested without presenting any evidence.

Defense counsel took exception to the court's ruling on his motion to dismiss, but agreed that jurisdiction was an issue for the jury. In accordance with the Court of Appeals' decision in People v. McLaughlin, 80 NY2d 466 (1992), the question of territorial jurisdiction was submitted to the jury, which was directed that defendant could be convicted only if the People established jurisdiction beyond a reasonable doubt. As evidenced by its verdict, the jury found that there was jurisdiction within the State of New York, and convicted defendant of Insurance Fraud in the Third Degree.

Geographic Jurisdiction

The issue on this motion is whether there was sufficient evidence to support the jury's determination that the insurance fraud was committed in the State of New York, within the meaning of CPL article 20. Territorial jurisdiction implicates the State's inherent authority to prosecute and punish a suspect for alleged criminal conduct. People v. McLaughlin, supra. The general rule is that for the State to have criminal jurisdiction, either the alleged conduct or some consequence of it must have occurred within the State. People v. Carvajal, 6 NY3d 305 (2005).

The People were required to establish that defendant engaged in conduct within New York sufficient to establish an element of Insurance Fraud in the Third Degree, as required by section 20.20 (1) (a). The People argue that this jurisdictional predicate was met when defendant falsely reported his car stolen, filed a stolen car report, and subsequently made a false statement to a New York City Police Officer, actions that all took place in New York State. The People's argument is that but for the filing of the false report and the burning of his car, both events which occurred in New York, defendant's fraudulent insurance claim to State Farm could not have been made. Defendant maintains that since no element of the alleged insurance fraud itself occurred in New York, no conviction for insurance fraud can stand in New York State.[FN3] [*4]

Under Criminal Procedure Law § 20.20 (1) (a), New York courts may exercise jurisdiction over offenses when "conduct occurred within this state sufficient to establish an element of such offense." As defendant was and is still a resident of New Jersey, the vehicle was registered in New Jersey, the vehicle was insured by State Farm under a New Jersey auto insurance policy and the insurance claim materials signed by defendant were submitted to State Farm in its New Jersey offices, he argues that no element of insurance fraud occurred in New York. In this argument, he relies upon the definition of a fraudulent insurance act in section 176.05 (1) of the Penal Law, which requires the presentation or preparation for presentation of a written statement in support of a claim to an insurance company which the presenter knows to contain materially false information.[FN4] There is no dispute but that the written materials prepared by defendant for direct presentation to State Farm were both prepared and presented in New Jersey and that the defendant had no direct involvement in the transmission of reports from New York City police to State Farm in New Jersey.

Defendant's argument is not persuasive because it misperceives the nature and effect of the statutory provisions. There was sufficient evidence for the jury to conclude that a fraudulent insurance act occurred in New York. As the defendant's car had never been in New York County in the early morning hours of August 13, 2004 and therefore could not have been stolen there (having already burned in Bronx County before 11 P.M. on August 12), the complaint report and vehicle theft supporting deposition signed by him on August 13 clearly contained materially false information concerning a material fact. That the defendant made his report and signed those documents with intent to defraud his insurance carrier, State Farm, is the inescapable conclusion.

While the defendant argues that the statute is directed only at the written statements submitted directly to the insurer, it is not so limited. Section 176.05 (1) includes a written statement prepared with the belief that it will be presented to the insurer in support of a claim. There was ample circumstantial proof to base the jury's conclusion that the defendant believed that the complaint report and vehicle theft supporting deposition signed by him at the10th Precinct would be presented to the insurer. He entered New York State and misrepresented that he was the victim of a crime by personally filling out a complaint report for a stolen vehicle and signing an affidavit of theft indicating that his car had been stolen in New York State. That the defendant believed that those documents would be presented to the insurer in support of his claim is an inference which can fairly be drawn from his actions; no other explanation for his report of a stolen car in New York and his execution of the relevant written documents was proffered or exists.

While there was no evidence that defendant was responsible for the vehicle fire in Bronx County, his conduct in New York State manifested an intent to commit the crime of insurance fraud and he carried that intent forward for the purpose of defrauding State Farm. In particular, the filing of the false police reports in New York was a necessary step in order to defraud State [*5]Farm; it is axiomatic that a police report must first be filed somewhere before an insurance company will consider a claim for theft. Here, proof was offered that defendant engaged in substantial conduct in New York that manifested knowledge and an intent to defraud the insurance company. Even if one were to argue that mere thoughts or plans do not meet the in-state conduct requirement of CPL§ 20.20 [see People v. Cullen, 50 NY2d 168 (1980); but see People v. Kassebaum, 95 NY2d 611, cert. denied, 532 US 1069 (2001)], here there was conduct that went beyond intention and formed a nexus with New York sufficient to confer jurisdiction over the crime of insurance fraud [Cf. People v. Axentiou, 158 Misc 2d 19 (Sup Ct NY County 1993), where the court ruled that in a larceny case that merely because a loss would be sustained in New York, the actual wrongful taking of the property occurred in New Jersey and thus New York was without jurisdiction].

Defendant's act in New York of completing and signing the relevant police reports and supporting deposition was more than a de minimis act toward the eventual completion of the offense of insurance fraud, even though the fraudulent claim was submitted in New Jersey. The Court of Appeals has stated that in prosecuting insurance fraud, "the series of acts done in furtherance of filing the false claim could not be divorced from the ultimate act of making the claim for payment for purposes of separate prosecution." People v. Aksoy, 84 NY2d 912, at 914 (1992). See also People v. Blacio, Sup Ct, Bronx County, May 12, 2005, Barone, J., Indictment No. 1731/2004.

In sum, the Court finds that the People offered evidence from which the jury could reasonably infer that the CPL § 20.20 (1) (a) "element" requirement was met beyond a reasonable doubt, thereby establishing a basis for prosecution in New York. The court also finds that the People have proven each and every element of the offense of Insurance Fraud in the Third Degree beyond a reasonable doubt.

Accordingly, defendant's the motion to set aside the verdict and dismiss for lack of geographic jurisdiction pursuant to CPL § 20.20 is denied in its entirety.

This constitutes the decision and order of the Court.

Dated:Bronx, New York

September 6, 2006

MICHAEL R. SONBERG, J.S.C. Footnotes

Footnote 1: The latter count was not submitted to the jury.

Footnote 2: Defendant's objection is only based on territorial jurisdiction as it relates to jurisdiction within the State. He makes no claim with respect to jurisdiction within Bronx County, under CPL § 20.40. As he neither moved to dismiss nor requested that the jury be charged on those grounds, any defect as to jurisdiction within the county has been waived. People v. Greenberg, 89 NY2d 553 (1997); People v.Moore, 46 NY2d 1 (1978).

Footnote 3: The elements under Penal Law §176.20 are (1) that defendant committed a fraudulent insurance act; (2) that he did so knowingly and with intent to defraud; (3) that he wrongfully took, obtained or withheld or attempted to wrongfully take, obtain or withhold property with a value in excess of $3000.

Footnote 4:In relevant part, Penal Law § 176.05 (1) provides that "a fraudulent insurance act is committed by any person who, knowingly and with intent to defraud, presents, causes to be presented or prepares with knowledge or belief that it will be presented to or by an insurer . . . any written statement as a part of, or in support of . . . a claim for payment . . . pursuant to an insurance policy . . . which he knows to: (i) contain materially false information concerning any fact material thereto . . . ."